New era of proportionality

Profession

The courts can anticipate some satellite litigation next year as the Jackson reforms on cost and proportionality bed in, according to Lord Neuberger, the Master of the Rolls.  Lord Neuberger, in a lecture on the implementation of the Jackson reforms, at the Law Society in May, said it would be “positively dangerous” for him to give detailed guidance on proportionate costs as the law would need to be developed on a case by case basis.

That may mean “a degree of satellite litigation while the courts work out the law,” he said.  Lord Justice Jackson’s reforms on civil litigation costs are included in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and are due to come into force next April.  Judges will be given extra training before April, while “in due course, two specific members of the Court of Appeal will be asked to sit on all appeals arising out of the Jackson reforms to ensure consistency and efficiency”.

Lord Neuberger said proportionality would apply throughout the progress of the case, rather than just at the end.   “At case management and cost management hearings, the court will have to decide the cost of certain steps, and whether that cost is proportionate,” he said.  “Each such decision will be fact sensitive, but it may well be that parties and the court will be faced with the question at a case or cost management hearing of deciding whether, for instance, a witness statement, an additional expert’s report, disclosure of certain items of evidence can be achieved at proportionate cost.”

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